tag:blogger.com,1999:blog-2492055523235356445.post2186996578368384229..comments2020-06-03T14:50:12.458-07:00Comments on - the dance of reason: When being rational is intolerableSac State Philosophyhttp://www.blogger.com/profile/17963066908030437925noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-2492055523235356445.post-48775310147860956992015-03-04T18:03:29.763-08:002015-03-04T18:03:29.763-08:00Randy, the risk is exactly the risk of wrongful co...Randy, the risk is exactly the risk of wrongful conviction, and it is very real. The federal numbers for 2004 (why the Feds have data only as recent as 2004, is another curiosity) among felony defendants who went to trial within one year (only 89%, so 11% took longer than one year to go to trial), 68% were convicted of the crime with which they were charged. We know that not all the convicted were factually-guilty and not all the acquitted were factually-innocent. Just on death penalty cases, where there is generally a higher degree of scrutiny and oversight, with both sides being well-prepared (mostly), some estimates put the wrongful conviction numbers at 25% -- i.e., 25% of those convicted in death penalty cases are factually innocent. The data isn&#39;t clear on acquittals and what percentage of innocent defendants that 25% represents. It seems that the risk of conviction at trial is high for an innocent accused. <br /><br />I agree that plea bargaining, especially the degree to which it is conducted in this country, masks some serious problems with the criminal justice system. It&#39;s not merely a matter of perception. My analysis doesn&#39;t address race, but the situation for African Americans, for example, is even worse with the likelihood of conviction at trial even higher than for a white defendant. Recent work on disenfranchisement of the African American community as a result of felony convictions indicates the problem is real and it is multiple. There&#39;s also evidence which suggests prosecutors are less inclined to offer non-felony level plea deals to African American defendants even as a stating bargaining point. All of this is not just a factor of poorly supporter or just poorly capable public defenders, but also reliance upon faulty evidence, securing convictions on circumstantial evidence, racism, the legacy of poverty, disparate sentencing structures, excessively punitive sentencing guidelines and minimums, etc, etc. <br />Anonymoushttps://www.blogger.com/profile/02600906391266660678noreply@blogger.comtag:blogger.com,1999:blog-2492055523235356445.post-57251921855393287012015-03-04T17:36:16.107-08:002015-03-04T17:36:16.107-08:00Annoying is an understatement, Dan... but yes!Annoying is an understatement, Dan... but yes!Anonymoushttps://www.blogger.com/profile/02600906391266660678noreply@blogger.comtag:blogger.com,1999:blog-2492055523235356445.post-19454232708277760012015-03-04T17:35:56.740-08:002015-03-04T17:35:56.740-08:00Not a bad idea, Kyle, since most plea agreement of...Not a bad idea, Kyle, since most plea agreement offer considerably lower jail time, which victims often are shocked by. This would prompt many more cases to go to trial. However, on it&#39;s own this would just return the flood of criminal trials to the courts, which the please system redirect -- plead guilty, go directly to jail, do not stop at court. the implication we&#39;ve already seen in US recent history is that accused would sit in jail awaiting trial for even longer periods, which is again, a violation of constitutional guarantees of due process. But, it would certainly put pressure on the prosecutor, perhaps even acting as a kind of review over prosecutorial discretion. So, I&#39;d be willing to experiment with it. Anonymoushttps://www.blogger.com/profile/02600906391266660678noreply@blogger.comtag:blogger.com,1999:blog-2492055523235356445.post-71985261251195724342015-03-04T17:32:30.781-08:002015-03-04T17:32:30.781-08:00Brad, the history of plea bargaining seems to corr...Brad, the history of plea bargaining seems to correlate with significant changes in US social and political changes. Most recently with the elevation in the 1970s and 80s of many non-felony crimes into felony crimes (which typically impose jail time rather than fines), most significantly in the war on drugs. It also spikes again in the 1980s and 1990s with the introduction of mandatory minimum sentencing and then again with mandatory sentencing guidelines, both of which are legislative responses to the apparent lackadaisical attitude of the judiciary to crime and punishment. The get touch on crime laws, which include California&#39;s 3-Strikes laws, had the combined effect of over-whelming the court system. <br /><br />As a remedy for over-crowded criminal courts, plea bargaining makes sense. However, what has once made sense in practical terms now makes no sense in terms of justice. The atrocious under-funding of the judiciary and course systems, coupled with the excessively punitive system of penalties and classifications of crimes -- including mere use and possession of mild recreational drugs -- has left the US with much less than a stellar criminal justice system. For people who are guilty, please bargaining is not a bad alternative to a fairly high probability conviction under mandatory minimum sentencing. That works for all concerned, the criminal is off the streets, the prosecutor saves the public funds and court time and resources, the defense attorney can move on their next client, and the criminal gets typically a lighter sentence. <br /><br />The rub arises when the accused is not guilty. This makes the stink on the system real. Indeed, everyone is, according to the ideals of the US justice system, presumed innocent and has a right to a trial. But the risks of trial are great in these circumstances, and the cost of trial is real for those who can afford an attorney. The risk of conviction at trial is great, regardless of factual innocence, and that comes with a higher sentence than a plea agreement. <br /><br />How would I fix it? Well, look at some similarly situated liberal democracies, most of which have not adopted to any extent a plea system. they fund their courts as needed, they adjust their sentencing statues and criminal laws according to the best data on recidivism and crime prevention. Most also treat &#39;crimes&#39; such as drug possession and use as misdemeanours at worst. But, the US might just be especially criminally inclined, in which case, I would strongly suggest some sort of real oversight of prosecutor discretion. I would also recommend eliminating most of the mandatory minimum sentencing and allow judicial discretion back into the sentencing picture. Most the mandatory minimum sentencing laws were the result of political mis-representation and hyperbole, stirring up the electorate over the apparent inadequacies of criminal punishment. So, educating the populace about the reality of crime, and of the failings of these sorts of efforts, might go along way toward promoting reinvestment in the criminal justice system and a recalibration of sentencing structures. that would be a good start. Anonymoushttps://www.blogger.com/profile/02600906391266660678noreply@blogger.comtag:blogger.com,1999:blog-2492055523235356445.post-82654428795585077562015-03-02T22:51:30.312-08:002015-03-02T22:51:30.312-08:00Great post Chris! Quickly getting one&#39;s day in...Great post Chris! Quickly getting one&#39;s day in court seems very important. Being jailed for years while awaiting trial would be so annoying for an innocent person. Dan Weijershttps://www.blogger.com/profile/00692909093462278729noreply@blogger.comtag:blogger.com,1999:blog-2492055523235356445.post-67029240100513167292015-03-02T09:45:22.790-08:002015-03-02T09:45:22.790-08:00It wouldn&#39;t eliminate all the problems but it ...It wouldn&#39;t eliminate all the problems but it would go a long way to give victims veto power over pleas. Also, end the drug war.Kyle Swanhttps://www.blogger.com/profile/18426609799325457256noreply@blogger.comtag:blogger.com,1999:blog-2492055523235356445.post-73529571472941851382015-03-01T22:25:52.689-08:002015-03-01T22:25:52.689-08:00Chris, you avoid saying what you recommend doing a...Chris, you avoid saying what you recommend doing about the problem of plea bargaining. If you are in favor of eliminating it completely, then what about the consequences? Can you envision a better alternative?Bradley Dowdenhttps://www.blogger.com/profile/03398822652849338607noreply@blogger.comtag:blogger.com,1999:blog-2492055523235356445.post-20316045593050993862015-03-01T19:30:16.455-08:002015-03-01T19:30:16.455-08:00Chris, thanks a lot for this. I&#39;ve never liked...Chris, thanks a lot for this. I&#39;ve never liked plea-bargaining and you&#39;ve just explained to me why. I&#39;m disinclined to defend it, but if I had to I might say that a big part of the problem you identify lies in the rational expectation that that the factually innocent will be wrongly convicted. If this is an accurate perception, then the problem is the system. If it is an inaccurate one, then the problem is education. But even if this is true, it seems like the correct reply here is that the dominance of plea-bargaining actually removes the incentive for improving the process in either way. Plea-bargaining works best when the system sucks, in other words. And, of course maybe that&#39;s the best explanation for why we have it.G. Randolph Mayeshttps://www.blogger.com/profile/18285281186698499962noreply@blogger.com